Citation Nr: 1752050 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-35 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for bone cancer as secondary to exposure to herbicide agents. 3. Entitlement to service connection for a throat disorder, to include a tumor, as secondary to exposure to herbicide agents. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This appeal is before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which, in pertinent part, denied service connection for a left knee disorder, bone cancer, and a throat disorder. In March 2015 and December 2016, the Board remanded the issues for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The December 2016 Board remand instructed the AOJ to 1) request that the Veteran identify any treatment received for his left knee disorder, throat disorder, and bone cancer, and that he provide a release for any treatment records pertaining to the removal of the mass from his neck in 2010; 2) provide a VA oncology examination by an oncologist to assess whether the Veteran had any diagnosis of soft tissue sarcoma in the records and whether the Veteran's bone cancer and any cancer related to the mass in his neck had a clinical onset during active duty service or is related to service, to include presumed herbicide exposure; and 3) readjudicate the claims. In January 2017, the AOJ requested that the Veteran identify any pertinent treatment he received and to provide a release for treatment records regarding the removal of the mass from his neck in 2010. It also readjudicated the claims in a June 2017 Supplemental Statement of the Case (SSOC). Although VA examinations were provided in March 2017, the VA examiner was not stated to be an oncologist but rather appears to be a staff physician, who did not provide an oncology examination but rather completed the Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) and the Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ. Additionally, the record shows that the VA examiner graciously spent 40 minutes obtaining the records related to the neck tumor removal in 2010. She discovered that the Veteran had surgery at the Mason City Clinic, spoke with the Medical Records Department, had the Veteran sign a release for those records, and expected to receive the required records by facsimile. Unfortunately, the release signed by the Veteran and the treatment records relating to the 2010 neck tumor removal are not associated with the claims file, and these treatment records are not included in the list of evidence considered by the RO in the June 2017 SSOC. Although the Board regrets this further delay, this additional development is necessary to ensure that the Veteran is afforded all due process under the law. With respect to the left knee disability claim, this matter is inextricably intertwined as the examiner in July 2015 seemed to relate the Veteran's left knee disability to his diagnosed chondrosarcoma. Accordingly, the case is REMANDED for the following actions: 1. Associate the release signed by the Veteran for the Mason City Clinic treatment records relating to the 2010 neck tumor removal (see March 2017 addendum) and then obtains the records and associate them with the claims file. If the release and treatment records cannot be found, contact the Veteran to obtain another release so that these records may be obtained and associated with the claims file. 2. Then, obtain a VA opinion from an ONCOLOGIST to determine the nature and etiology of the Veteran's bone cancer and throat disorder to include the tumor. The entire claims file, including a copy of the remand, should be made available to, and be reviewed by, the VA examiner. The examiner must note that the claims file was reviewed. **The examiner should assess whether the Veteran has any diagnosis of soft tissue sarcoma in the records.** In addition to any other pertinent evidence of record, the examiner should specifically consider the following: a) The Veteran's service personnel records and service treatment records (STRs) reflecting that he served in the Republic of Vietnam during the Vietnam era, and thus he is presumed to have been exposed to herbicide agents during service. b) His STRs are entirely negative for cancer, including bone and/or throat cancer. c) Private medical records dated in 1987 reflecting that the Veteran had a tumor in the left femur, and in 2010 showing that he had a mass removed from his neck that had been noted by the Veteran in October 2007 and June 2009 as a longstanding issue. The VA examiner shall: Provide an opinion whether it is at least as likely as not that the Veteran's bone cancer and any cancer that may be related to a mass in the neck had its clinical onset during active duty service or is related to service, including presumed herbicide agent exposure. **In providing this opinion, the examiner should acknowledge that reliance on statistical analysis without further consideration of the medical factors on the Veteran's specific case is an insufficient reason to deny service connection for the bone and/or throat cancer.** A complete rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so. 3. After determining whether any additional development is necessary, readjudicate the Veteran's claims for service connection for a left knee disorder, bone cancer, and a throat disorder to include a tumor. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished an SSOC and provided an appropriate opportunity to respond before the claims file is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).